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					                      THE SUPREME COURT OF TEXAS

________________________________________________________________________________


    IN RE BEXAR COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE

________________________________________________________________________________


            RELATORS’ PETITION FOR A WRIT OF MANDAMUS

________________________________________________________________________________


       ORAL ARGUMENT: RELATORS REQUEST ORAL ARGUMENT

________________________________________________________________________________



                                               SUSAN D. REED
                                               Criminal District Attorney
                                               Bexar County, Texas


                                               CLARKSON F. BROWN
                                               Texas Bar Number 00798082
                                               Assistant Criminal District
                                               Attorney-Civil Division
                                               300 Dolorosa, Suite 4049
                                               San Antonio, Texas 78205
                                               Telephone No. (210) 335-2139
                                               Fax No. (210) 335-2151
                    IDENTITY OF PARTIES AND COUNSEL

Relators:                                     Counsel:

Bexar County District Attorney’s Office       Clarkson F. Brown
Sylvia Cavazos                                Assistant District Attorney
Al Lary                                       Civil Section
Robert M. McCabe                              300 Dolorosa, Suite 4049
                                              San Antonio, Texas 78205
                                              Telephone: (210) 335-2139
                                              Telecopier: (210) 335-2151

Cynthia Blank, Individually and               Thomas W. Gendry
As Parent and Next Friend of                  Gendry & Spargue, P.C.
Travis Blank                                  645 Lockhill Selma
                                              San Antonio, Texas 78216
                                              (210) 349-0511
                                              (210) 349-2760

Real Parties In Interest:                     Counsel:

David Crudup                                  Robert W. Wilson, Esq.
                                              Gale, Wilson & Sanchez, PLLC
                                              115 E. Travis, Suite 618
                                              San Antonio, Texas 78205
                                              Telephone: (210) 222-8899
                                              Telecopier: (210) 222-9526

Honorable Karen Pozza
408th Judicial District Court
Bexar County Courthouse
100 Dolorosa
San Antonio, Texas 78205

Respondent:

Texas Fourth Court of Appeals
300 Dolorosa
San Antonio, Texas 78205

                                              _______________________________
                                              CLARKSON F. BROWN



                                          i
                                                 TABLE OF CONTENTS
                                                                                                                              PAGE(S)
IDENTITY OF PARTIES AND COUNSEL ........................................................................... i

TABLE OF CONTENTS ........................................................................................................ ii

INDEX OF AUTHORITIES .................................................................................................. iii

STATEMENT OF THE CASE ............................................................................................... 1

STATEMENT OF THE JURISDICTION............................................................................... 2

ISSUE PRESENTED............................................................................................................... 2

STATEMENT OF THE FACTS ............................................................................................. 2

ARGUMENT........................................................................................................................... 3

       A. 56.1(a)(2) There is a conflict between the courts of appeals on an important point of
          law.............................................................................................................................. 3

       B. 56.1(a)(5) & (6) The court of appeals has committed an error of law of such
          importance to the state’s jurisprudence that it should be corrected and it had decided an
          important question of state law that should be resolved by the Supreme Court. ...... 6

            1.      The Fourth Court wipes out the work product privilege without even analyzing
                    the fact that the information sought from the District Attorney’s Office is
                    unnecessary........................................................................................................ 7

            2.      The Court should not destroy the work product privilege to allow a party to
                    question Texas prosecutors about issues they have no knowledge. .................. 9

            3.      Baseless assumptions and unsupported assertions did not merit mandamus and do
                    not merit the elimination of the work product privilege. ................................ 10

       C. 56.1(a)(3) This case involves the proper interpretation of Texas Rule of Civil
          Procedure 192.5(b)(4). ............................................................................................. 13

CONCLUSION AND PRAYER ........................................................................................... 14

CERTIFICATE OF SERVICE .............................................................................................. 16

APPENDIX............................................................................................................................ 17

RECORDS ............................................................................................................................. 18



                                                                    ii
                                             INDEX OF AUTHORITIES

U. S. SUPREME COURT CASES:                                                                                               PAGE(S)

Hickman v. Taylor, 329 U.S. 495 (1947)....................................................................... 4, 5, 13

United States v. Nobles, 422 U.S. 225 (1975) ................................................................. 4, 5, 6

TEXAS CASES:                                                                                                             PAGE(S)

Axelson, Inc. v. McIlhany, 798 S.W.2d 550 (Tex. 1990) ........................................................ 4

Browning-Ferris Industries, Inc. v. Lieck, 881 S.W.2d 288 (Tex. 1994)............................ 8, 9

Enos v. Baker, 751 S.W.2d 946 (Tex. App.--Houston [14th Dist.] 1988, orig. proceeding) .. 4

Johnson v Texas, 1997 Tex. Crim. App. Lexis 28 (Tex.Cr.App. 1997).................................. 4

King v. Graham, 126 S.W.3d 75 (Tex. 2004).............................................................. 6, 10, 11

National Union Fire Insurance Co. v. Valdez, 863 S.W.2d 458 (Tex. 1993,
  orig. proceeding).................................................................................................................. 4

Navarro v. Texas, 810 S.W.2d 432 (Tex. App.--San Antonio, 1991, pet. ref’d) .................... 5

Owens-Corning v Hon. Neil Caldwell, 818 S.W.2d 749 (Tex. 1991) ........................... 4, 6, 13

Wiley v. Williams, 769 S.W.2d 715 (Tex. App.--Austin 1989) ............................................... 4

RULES:                                                                                                                   PAGE(S)

TEX. R. APP. P. 52.1 ................................................................................................................. 2

TEX. R. APP. P. 52.3(J)(2) ........................................................................................................ 2

TEX. R. APP. P. 56.1 ................................................................................................................. 3

TEX. R. CIV. P. 192.5 ............................................................................................................... 1

TEX. R. CIV. P. 192.5(B)(4) ................................................................................................... 13




                                                                  iii
                                         STATEMENT OF THE CASE

         The underlying proceeding arose out of a suit for malicious prosecution between the real

parties in interest in David Crudup vs. Travis Blank 1 . Bexar County Criminal District

Attorney’s Office employee 2 Sylvia Cavazos, a Bexar County Assistant Criminal District

Attorney, Al Lary, a Bexar County Criminal District Attorney Investigator, and Robert M.

McCabe, a former Bexar County Assistant Criminal District Attorney were served with

subpoenas to provide trial testimony in the underlying civil suit regarding their involvement in a

criminal prosecution. The subpoenas directed that all three individuals appear on March 7,

2004 at 8:30 AM in the 166th Judicial District to give testimony on behalf of the Plaintiff.

         The Bexar County District Attorney’s Office objected, on its behalf and on behalf of

these individuals, to their required appearance and testimony based on the work product

privilege. 3 The trial court judge was the Honorable Karen Pozza of the 407th District Court

sitting in Bexar County, Texas. On March 7, 2005 a hearing was held on the District Attorneys’

Motion to Quash. Judge Pozza granted the Motion and quashed the trial subpoenas. On March

28, 2005 real party in interest Crudup filed a Motion for Reconsideration. On April 14, 2005

Judge Pozza signed an Order denying the motion for reconsideration and granting the Motion to

Quash the three supoenas.

         Real party in interest David Crudup appealed this order by filing a Petition for



1
    David Crudup and Annette Crudup vs. Cynthia Blank, individually and as next friend and parent of Travis Blank, Cause
    No. 2002-CI-00450, In the District Court 408th Judicial District Bexar County, Texas.
2
    The relators are the Bexar County Criminal District Attorney’s Office and employees of the District Attorney’s Office at
    the time of the events giving rise to the underlying action. Two are attorneys, Cavazos and McCabe, and one an
    investigator, Lary. For simplicity, they will collectively be referred to as district attorneys.
3
    Texas Rule of Civil Procedure 192.5 (“core work product-The work product of an attorney or an attorney’s representative
    that contains the attorney’s or the attorney’s representative’s mental impressions, opinions, conclusions, or legal theories
    - is not discoverable.”)
                                                               1
Mandamus with the Texas Fourth Court of Appeals on May 13, 2005. 4 On July 20, 2005, the

Fourth Court of Appeals issued an opinion conditionally granting the Writ of Mandamus. 5

Justices Catherine Stone, Sarah B. Duncan and Sandee Bryan Marion participated in the

decision with Justice Marion writing the opinion of the court. The case is currently without

citation.

                                 STATEMENT OF THE JURISDICTION

         This court has jurisdiction pursuant to Section 52.1 of the Texas Rules of Appellate

Procedure.

                                                ISSUE PRESENTED

         Issue: Whether a Texas Criminal District Attorney’s Office and its employees lose their

work product privilege merely because a civil litigant files a malicious prosecution case.

         Short answer: No. The opinion of the Fourth Court has essentially wiped out the work

product privilege for every Texas criminal district attorney’s office for no more than the filing

fee to bring a malicious prosecution case. Such a sweeping opinion contradicts the strong

precedent of protecting the work product of attorneys of the criminal justice system in Texas

and the nation.

                                        STATEMENT OF THE FACTS

         The court of appeals correctly stated the nature of the case for purposes of this

proceeding.



4
    Exhibit 1 of Appendix. The underlying relator, Crudup’s, Petition filed with the Fourth Court is included in the appendix
    without its voluminous appendix included. Two pages from the underlying petition’s appendix which are applicable
    under TRAP 52.3(j)(2) are included in the attached record. If the court would like the entire appendix filed, relators will
    expedite delivery upon request.
5
    Exhibit 2 of Appendix.
                                                              2
                                         ARGUMENT

       This court should exercise jurisdiction because the Fourth Court has ignored the

precedent of this court, other Texas appellate courts and the United States Supreme Court by

abrogating the high level protection afforded the work product of Texas criminal district

attorneys. The court has reduced the level of protection of a district attorney’s work product to

zero. According to the Fourth Court of Appeals, for a person to break the work product

privilege of a district attorney he merely needs to file a civil case for malicious prosecution and

for no more than the filing fee, the prosecutors of Texas lose their work product privilege. This

would potentially encompass any case not accepted by a grand jury, dismissed by the

prosecuting attorneys or that resulted in a not guilty verdict. The potential burden to the Texas

criminal justice system is enormous. This court should exercise jurisdiction because the

following factors from Texas Rule of Appellate Procedure 56.1 are all implicated.

A.     56.1(a)(2) There is a conflict between the courts of appeals on an important point of
law.

       No other appellate court has granted such a sweeping denial of criminal district

attorneys’ work product privilege. Quite the opposite has occurred throughout the courts of

Texas and thus the opinion by the Fourth Court marks a serious departure from the case law in

Texas recognizing the important role of prosecutors and affording them a high level of privilege

in legal matters. The courts recognize that district attorneys, as with all attorneys, are protected

by the work-product doctrine. The cases on point all discuss disclosure of documents contained

in district attorneys’ files but the same reasoning extends to testimony, be it deposition or trial.

In fact, shielding district attorneys from testifying rather than just turning over files is even

more compelling under the case law. The cases quoted below show not only what work-
                                                 3
product consists of, but demonstrate a clear intent for the privilege to strongly apply to protect

the work of the attorneys working for the criminal justice system.

          “The primary purpose of the work product rule is to shelter the mental processes,

conclusions, and legal theories of the attorney, providing a privileged area within which the

lawyer can analyze and prepare his or her case.” 6

          “The work-product doctrine is vital in assuring the proper functioning of the criminal

justice system. 7 In defining the scope of work-product, the Supreme Court stated that it “is

reflected, of course, in interviews, statements, memoranda,” and other ways. 8 “At its core, the

work-product doctrine shelters the mental processes of the attorney, providing a privileged area

within which [an attorney] can analyze and prepare his client’s case.” 9 Additionally, under our

Code of Criminal Procedure, the State’s work-product is specifically protected from

discovery.” 10

          “In National Union Fire Insurance Co. v. Valdez, 11 we stated that “an attorney’s

litigation file goes to the heart of the privileged work area guaranteed by the work product

exemption. The organization of the file, as well as the decision as to what to include in it,

necessarily reveals the attorney’s thought processes concerning the prosecution or defense of

the case.” Thus, under National Union, the privilege extends to the entire litigation file, not

only to documents which, considered individually, are attorney work-product.” 12


6
     Owens-Corning v. Hon. Neil Caldwell, 818 S.W.2d 749, 750 (Tex. 1991); Axelson, Inc. v. McIlhany, 798 S.W.2d 550,
     554 (Tex. 1990); Enos v. Baker, 751 S.W.2d 946 (Tex. App. - Houston [14th Dist.] 1988, orig. proceeding).
7
     United States v. Nobles, 422 U.S. 225 (1975).
8
     Hickman v. Taylor, 329 U.S. 495 (1947).
9
     Nobles, 422 U.S. at 238.
10
     Johnson v Texas, 1997 Tex. Crim. App. Lexis 28, *38 (Tex.Cr.App. 1997).
11
     863 S.W.2d 458, 460 (Tex. 1993, orig. proceeding).
12
     See also Owens-Corning, 818 S.W.2d at 750-51. (work product rule shelters mental processes of attorney); Wiley v.
     Williams, 769 S.W.2d 715, 717 (Tex. App. Austin 1989, orig. proceeding [leave denied])(discussing work product
                                                           4
          The work-product privilege is applicable to litigation files in criminal as well as civil

litigation. As the United States Supreme Court explained in United States v. Nobles, 13

          “Although the work product doctrine most frequently is asserted as a bar to
          discovery in civil litigation, its role in assuring the proper functioning of the
          criminal justice system is even more vital. The interests of society and the
          accused in obtaining a fair and accurate resolution of the question of guilt or
          innocence demand that adequate safeguards assure the thorough preparation and
          presentation of each side of the case.” 14

          “The work product privilege extends to summaries of the evidence or discussions about

the offense that have been prepared for internal use of law enforcement officers, investigative

reports, internal prosecution files or papers, and statements prepared by law enforcement

officers after interviewing prospective witnesses.” 15

          In the underlying suit, document production is not an issue because the District

Attorney’s office chose to provide the documents requested pursuant to a subpoena duces

tecum. The only issue is whether the trial court erred in quashing the subpoenas requiring the

district attorneys to appear to testify. The trial court did not err and mandamus was improper.

          The courts have made clear that the mental processes of district attorneys are protected

by the work-product rule. One can hardly think of a more intrusive way to violate this privilege

than by putting those with the privilege on the stand or before a court reporter at deposition,

under oath, and allow the two parties below to pick the district attorneys’ brain about a criminal

proceeding in which they were involved. Such examination certainly violates the work-product

privilege which protects their “interviews, statements, memoranda” 16 and “mental processes,


     doctrine generally).
13
     Nobles, 422 U.S. 225 (1975).
14
     Id. 422 U.S. at 238.
15
     Navarro v. Texas, 810 S.W.2d 432, 436 (Tex. App. San Antonio, 1991, pet. ref’d).
16
     Hickman, 329 U.S. 495.
                                                           5
conclusions, and legal theories”. 17 A protection which, at its core, shelters the mental processes

of the attorney. 18 A doctrine the United States Supreme Court has found vital in assuring the

proper functioning of the criminal justice system. 19                       The Fourth Court ignores this precedent

and holds that the privilege is waived by no more than an assertion by a party in malicious

prosecution case that the “but for” factor relevant to a malicious prosecution will be difficult to

prove without the anticipated testimony of the district attorneys. The court of appeals does not

even require that proof be offered that the underlying prosecution was based on false

information. The Fourth Court requires no safeguards to protect the prosecutor’s office.

B.   56.1(a)(5) & (6) The court of appeals has committed an error of law of such
importance to the state’s jurisprudence that it should be corrected and it had decided an
important question of state law that should be resolved by the Supreme Court.

          The appellate court focused on only one issue raised below, the “initiation or

procurement” prong of a malicious prosecution claim. 20 The court discussed the “but for”

factor of this element and held that as long as a plaintiff argues that the underlying criminal

prosecution was based on false information the work product privilege of any district attorney

that worked on the case is wiped out. This holding is based on an overly broad and incorrect

application of the case King v. Graham. 21

          King involved a suit for malicious prosecution in which it was admitted that false

information existed, unlike here where there is no evidence or finding of fact that false

information was submitted to the District Attorney’s Office. This court held in King that in


17
     Owens-Corning, 818 S.W.2d at 50.
18
     Nobles, 422 U.S. at 238.
19
     Id.
20
     The briefs in the appellate court addressed several other issues that the Fourth Court chose not to address. If this court
     feels these other arguments need briefing, the respondent stands ready to provide this.
21
     126 S.W.3d 75.
                                                               6
order to recover for malicious prosecution an element a plaintiff must prove is that the decision

to prosecute would not have been made but for the false information supplied by the defendant

to the person with discretion to prosecute. The holding assumed that there was false

information provided but it neither required that a district attorney be called to prove this

allegation nor did it stand for the proposition that a district attorney loses the work product

privilege every time a malicious prosecution case comes around. The Fourth Court’s reading of

King to hold that merely filing a malicious prosecution action and alleging that false

information may have been provided is enough to eliminate the district attorneys’ work product

privilege contradicts the strong history of protection provided a prosecutor’s office by both this

State’s courts and the courts of the United States. The fact that a civil litigant may have to take

a different path than calling district attorneys to testify in proving their malicious prosecution

case should not be enough to override this precedent of protection.

1.     The Fourth Court wipes out the work product privilege without even analyzing the
fact that the information sought from the District Attorney’s Office is unnecessary.

       Before every district attorneys’ work product privilege in Texas is broken by the Fourth

Court’s opinion, there needs to be a threshold showing that false information exists and that the

prosecutors testimony is absolutely the only way get to this fact.

       Crudup correctly argued below that he will have to prove that the defendant in the

underlying case, Travis Blank, initiated or procured the prosecution. Meeting this element can

be done either by proving the relatively easy “initiation” or the much more difficult

“procurement”. Rather than take the easy road of initiation, Crudup opts for the more difficult

procurement road. Crudup is attempting to meet this element by proving the “the information



                                                7
that was relied on by the District Attorney’s office was false.” 22 However, this information was

provided to the Sheriff’s Department, not the prosecutors. Crudup incorrectly asserted, and the

appellate court apparently accepted, that in order to prove this element, he must have the work-

product privilege broken and have the district attorneys testify about their opinion that the

information was false. Crudup concluded his argument below with the statement that without

this testimony he “will not be able to prove an element of his case” and that by quashing the

subpoenas the trial court’s order was an “abuse of discretion.” 23 The fact missed by the Fourth

Court is that proving procurement is not a necessary element to Crudup’s case.

          The necessary evidence to prove the element of “initiation or procurement” does not

require Crudup to meet the burden he asserted below. Crudup’s argument, and the Fourth

Court’s reasoning, focused exclusively on procurement and ignored initiation. Procurement and

initiation are two different and completely separate ways to meet the second element of a

malicious prosecution claim. In focusing on only one of the two options, the appellate court

accepted as true that Crudup’s burden is higher as to this element than is true. Thereby, the

Fourth Court unnecessarily orders the district attorneys to testify and needlessly eliminates the

work product privilege. Rather than take every precaution to protect the work product

privilege, the Fourth Court takes no steps and instead wipes out the privilege without even

addressing the fact that the testimony of the district attorney’s office is wholly unnecessary.

          Initiation requires no more than a showing that the underlying defendant made “a formal

charge to law enforcement authorities.” 24 That is met quite simply by showing the jury Travis



22
     Page 11 of Exhibit 1 of Appendix.
23
     Page 11 of Exhibit 1 of Appendix.
24
     Browning-Ferris Industries, Inc. v. Lieck, 881 S.W.2d, 288, 293 (Tex. 1994).
                                                            8
Blank’s sworn affidavits 25 to the Sheriff’s Office. Crudup needs no more to satisfy the second

element of his malicious prosecution clam for the jury. Procurement becomes irrelevant. There

is no need for the district attorneys to testify about initiation nor can they, due to a lack of

personal knowledge. Again, initiation is demonstrated by evidence that defendant filed formal

charges against plaintiff. 26 These documents are Sheriff’s Office documents and are not

documents from which the district attorneys could testify. The fact that Crudup appears to

misunderstand his burden or is seeking to prove, for some unknown reason, the higher burden

required for procurement than initiation should not mean that all of the district attorneys of

Texas lose their work-product privilege as they do by the Fourth Court’s opinion.

2.    The Court should not destroy the work product privilege to allow a party to
question Texas prosecutors about issues they have no knowledge.

          Assuming this court finds Crudup should be able to prove the unneeded element of

procurement rather than just initiation, he still does not require the privileged testimony of the

district attorneys. Crudup’s burden to prove procurement is met by proving that Travis Blank

provided false information in his affidavits to the Sheriff.

          “What is true is that a person who provides false information cannot complain if a

prosecutor acts on it; he cannot be heard to contend that the prosecutor should have known

better. Such a person has procured the resulting prosecution, regardless of the actions of the

prosecutor, and the causation element for malicious prosecution is satisfied.” 27 Part of the

holding in King that the Fourth Court ignored is that in a case such as this one, where the only

evidence indicates that the decision to prosecute was based solely on the complainants

25
     Exhibit 1 of Record.
26
     Browning-Ferris Industries, Inc., 881 S.W.2d at 293.
27
     Id.
                                                            9
affidavits, the inference can be drawn by the jury that the decision to prosecute was based on

false information. 28

          This, of course, requires proof that the information in the affidavit is false. Falsity is not

shown by the opinion testimony of the district attorneys, but by evidence about Travis Blank’s

sworn accusations in the affidavits. As discussed below, this evidence comes from other

sources, not the opinion of district attorneys.

3.    Baseless assumptions and unsupported assertions did not merit mandamus and
do not merit the elimination of the work product privilege.

          Crudup made the assumption, and the appellate court accepted without proof, that the

district attorneys would testify that they believed the information provided by Travis Blank in

his affidavits to the Sheriff’s Office was false and the decision to prosecute was based on this

false information. This argument fails for a number of reasons and should not provide a basis

for the Fourth Court to destroy a district attorney’s work product privilege every time a

malicious prosecution case is filed.

          First, the district attorneys’ opinion testimony as to whether they believe the information

was false is immaterial to Crudup’s burden. Crudup must prove that Travis Blank “provided

information which [he] knew was false.” 29 The district attorney’s cannot and should not be

called upon to speculate what Travis Blank knew. This is a decision for a fact finder to make.

          Second, Crudup asked the appellate court, which they apparently did, to assume that

there was false information provided and the decision to prosecute was made based on the false

information. This court clearly held in King “the plaintiff has the burden of proving that that

decision [to prosecute] would not have been made but for the false information supplied by the

28
     King v. Graham, 126 S.W.3d 75, 79 (Tex. 2004).
                                                      10
defendant.” 30 Again, there has been no evidence presented to show any false information was

provided. Before the district attorneys’ work product privilege is broken, there needs to be a

substantial showing that false information was provided by Travis Blank in his affidavit to the

Sheriff’s Office. It should not be enough to break the privilege on a plaintiff’s hunch that there

may have been false information provided. By simply assuming there was false information

and then waiving the privilege goes too far and would seem to be outside the discretion of a trial

judge.

          Third, before breaking the work product privilege and allowing this opinion testimony of

district attorneys, this court should require the trial court to find Crudup has provided some

concrete evidence in the record that the district attorneys have knowledge, not opinion, that

Travis Blank “provided information which [he] knew was false.” 31 Nothing in the record

indicates this is so and thus Crudup failed to present the appellate court with a record sufficient

to establish the right to mandamus. As Crudup argued below, he “needs” 32 the district attorneys

to testify about this alleged false information but he points to nothing in the record to indicate

they would or could testify to this. Again, before the privilege is eliminated and even if the

district attorneys would testify to this, this does not help plaintiff meet his burden that Travis

Blank knowingly provided false information. At best, this would be an opinion by prosecutors

that they believe some information provided was false, but does not prove that it was done

knowingly by the complainant. Simply eliminating the privilege on this pure speculation comes

at too great a cost to the Texas criminal justice system.


29
     Id. at 76.
30
     Id. at 78.
31
     Id. at 76.
32
     Page 11 of Exhibit 1 of Appendix.
                                                 11
       Fifth, assuming this court finds none of the above arguments on point to maintain the

work product privilege and given the high level of protection afforded the work product of the

district attorneys, the court should require Crudup to show that the privileged testimony of the

district attorneys is the sole means of proving an element of his case. The jump to have the

district attorneys testify to prove this unneeded element of falsity ignores the myriad of other

ways to get this proof before the jury without violating the privilege. There is the direct

testimony of the parties and their impeachment. There is documentary evidence (police reports,

the affidavits of Travis Blank), lay witness testimony and demeanor, Sheriff Deputies’

testimony, and Sheriff Investigators’ testimony that the jury can be presented and then make

their judgment. The district attorneys are simply being called to give their speculative opinions

and mental impressions about whether Travis Blank knew the information he provided to the

Sheriff’s Office was false. Again, the burden is not to show that false information was provided

but the Blank knew it was false when he gave it. The record points to nothing to indicate that

the prosecutors hold this opinion or even that they have any unique evidence in their heads to

prove this element, let alone the sole evidence, requiring the privilege broken.

       Sixth, once the privilege is ordered broken there is nothing to limit the extent to which a

party could dig through the prosecutor’s work product or question district attorneys about any

aspect of the case. Undoubtedly, once the district attorney is under oath at deposition or trial

the questioning will not be limited to the simple question of whether the district attorney knows

that the complainant provided false information that he knew was false at the time. It will be an

open ended excavation into the whole process by which any prosecutor acted throughout the

whole criminal proceeding and potentially all other similar cases. This throws the door open for


                                               12
any person in a case not accepted by a grand jury, dismissed by the prosecuting attorneys or that

resulted in a not guilty verdict to file a malicious prosecution case and hope that they find, by

pouring through the prosecutors’ files and deposing district attorneys, information to support

their case. All of this will be under the auspice that it is necessary to prove a malicious

prosecution case and will be supported by the Fourth Court opinion. This burden on the Texas

criminal justice system would be disastrous.

C.    56.1(a)(3) This case involves the proper interpretation of Texas Rule of Civil
Procedure 192.5(b)(4).

          TRAP 56.1(a)(3) admittedly applies to statutes, but this court’s interpretation of Texas

Rule of Civil Procedure 192.5(b)(4) 33 is equally as important for instructing the courts of Texas.

This rule requires that courts make every effort to “protect against disclosure of the mental

impressions, opinions, conclusions, or legal theories not otherwise discoverable” when dealing

with attorney work product. The appellate court has essentially instructed trial courts to ignore

this rule whenever a plaintiff claims that privileged material may be needed to help prove a civil

case. The mandate directly violates the express language and intent of Texas Rule of Civil

Procedure 192.5(b)(4) by mandating the trial court not “protect against disclosure of the mental

impressions, opinions, conclusions” of these individuals. Rather, the opinion forces trial courts

to directly violate this rule and allow the parties below to require, via trial or deposition

testimony, the disclosure of “interviews, statements, [and] memoranda” 34 and “mental

processes, [and] conclusions” 35 of the district attorneys.




33
     Exhibit 3 of Appendix.
34
     Hickman, 329 U.S. 495.
35
     Owens-Corning, 818 S.W.2d at 50.
                                                 13
                                        III.
                               CONCLUSION AND PRAYER

       The burden on a party seeking mandamus is extremely high. Crudup failed to

demonstrate that the trial court abused her discretion in quashing the trial subpoenas for the

district attorneys. Crudup did not show that his case will be, even in the slightest way, hindered

by not having the privileged testimony of the district attorneys. The element of procurement is

unnecessary to his case for malicious prosecution and, even if it were, cannot be proven by the

testimony of those subpoenaed. The Fourth Court ignored the fact that procurement is not

necessary to Crudup’s case and that instead initiation will suffice. This lead the Fourth Court

down the incorrect path of analyzing the unnecessary “but for” test. However, even assuming

the “but for” test regarding procurement applied in this case, the Fourth Court disregarded the

fact that the speculative opinion testimony of the district attorneys about what they think Travis

Blank knew when making his affidavit for the Sheriff’s Office does nothing to prove this

unnecessary element.

       To let the Fourth Court’s opinion stand will put an unnecessary burden on the Texas

criminal justice system and harm the public it is designed to serve. Under the Fourth Court’s

opinion, there is no reason that a plaintiff could not take numerous depositions and subpoena for

trial any prosecutor that worked on a plaintiff’s case or even has knowledge about how

prosecutions are conducted by the prosecutor’s office. The fact that a prosecutor’s office may

have privileged information that the plaintiff in a malicious prosecution case (or any civil case

for that matter) would like to get to does not warrant allowing the prosecutors’ offices of Texas

to be open to limitless, disruptive and time consuming discovery and trial testimony.

       The Fourth Court ignored the strong precedent of protection provided the work product
                                               14
of the criminal justice system’s attorneys and prosecutors’ offices. Aware of the high level of

protection granted an attorney’s work product, this court should not let the opinion of the Fourth

Court stand and destroy this privilege for every prosecutor’s office in Texas for no more than

the cost of a filing fee to bring a malicious prosecution claim. Therefore, the Bexar County

Criminal District Attorney’s Office, Sylvia Cavazos, Robert M. McCabe and Al Lary pray that

this court grant their Petition for Mandamus.

                                                     Respectfully submitted,

                                                     SUSAN D. REED
                                                     Bexar County District Attorney


                                           By:
                                                     CLARKSON F. BROWN
                                                     State Bar No. 00798082
                                                     Assistant Criminal District Attorney
                                                     Bexar County Justice Center
                                                     300 Dolorosa Suite 4049-Civil Division
                                                     San Antonio, Texas 78205-3030
                                                     Phone No: (210) 335-2139
                                                     Fax No: (210) 335-2151




                                                15
                              CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and foregoing document(s) has

been served by Certified Mail Return Receipt or hand delivery at the addresses listed below, on

this the 3rd day of August, 2005:


       Texas Fourth Court of Appeals
       300 Dolorosa
       San Antonio, Texas 78205
       RESPONDENT

       Hon. Karen Pozza
       408th Judicial District Court
       Bexar County Courthouse
       100 Dolorosa
       San Antonio, Texas 78205
       REAL PARTY IN INTEREST

       Robert W. Wilson, Esq.
       Gale, Wilson & Sanchez, P.L.L.C
       115 East Travis, Suite 618
       San Antonio, Texas 78205
       COUNSEL FOR REAL PARTIES
       IN INTEREST DAVID CRUDUP AND
       ANNETTE CRUDUP

       Thomas W. Gendry
       Gendry & Sprague, P.C.
       645 Lockhill Selma
       San Antonio, Texas 78216
       COUNSEL FOR REAL PARTIES
       IN INTEREST CYNTHIA BLANK
       INDIVIDUALLY AND AS NEXT
       FRIEND AND PARENT OF
       TRAVIS BLANK



                                                   CLARKSON F. BROWN



                                              16
                     THE SUPREME COURT OF TEXAS
     _________________________________________________________________

     IN RE BEXAR COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
     _________________________________________________________________

            RELATORS’ PETITION FOR A WRIT OF MANDAMUS
     _________________________________________________________________

                                APPENDIX
     _________________________________________________________________


TAB 1 – EXHIBIT 1: Petition For Mandamus before the Fourth Court of Appeals

TAB 2 – EXHIBIT 2: Fourth Court Opinion In Re David Crudup

TAB 3 – EXHIBIT 3: Texas Rules Civil Procedures 192




                                        17
                     THE SUPREME COURT OF TEXAS
     _________________________________________________________________

     IN RE BEXAR COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
     _________________________________________________________________

            RELATORS’ PETITION FOR A WRIT OF MANDAMUS
     _________________________________________________________________

                                 RECORDS
     _________________________________________________________________


TAB 1 - EXHIBIT 1: Affidavits of Travis Blank to Sheriff’s Office


Pursuant to Texas Rule of Appellate Procedure 52.7 (A)(2) Relators state that no testimony
was adduced in connection with the matter complained.




                                            18

				
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